The European Ombudsman and the right to good administration as a fundamental right: conceptual issues

Transcription

1 The and the right to good administration as a fundamental right: conceptual issues Dr Antonios Antoniadis Legal Officer 1

2 Introduction Outline The development of the Ombudsman s office The Ombudsman s mandate Who? Against whom? About what? Maladministration and the right to good administration An insider s view Procedure Practice 2

3 Introduction Establishment and historical development of the Ombudsman Institutional prehistory and the coming of age : Söderman : Diamandouros : O Reilly The Ombudsman s Office Location (Strasbourg-Brussels) Staff (75 of which 20 legal officers) Website: Languages 3

4 Article 228 TFEU The Ombudsman s mandate A shall receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies The Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him directly Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned. The EO Statute The Implementing Provisions 4

5 Conceptual issues I: What is maladministration? Definition: (AR1998) Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it Illegality Maladministration Content: Maladministration v. unlawfulness ( There is life beyond legality ) Principles of good administration and human rights 5

6 Conceptual issues I: What is maladministration? The European Code of Good Administrative Behaviour The ECGAB was proposed by the Ombudsman and approved by the Parliament in 2001 as a follow-up to the Charter The Ombudsman makes use of the Code in the context of her inquiries. The Code includes principles such as lawfulness, absence of discrimination, proportionality, absence of abuse of power, impartiality and independence, objectivity, fairness and courtesy. 6

7 Conceptual issues II: What is good administration? Article 41 CFREU Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: the right to be heard; the right to have access to his or her file; the obligation of the administration to give reasons for its decisions. 3. The right to have the Community make good any damage caused by its institutions or by its servants. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. 7

8 Conceptual issues II: What is good administration? A. Scope of the principles of good administration Examples: Article 10 ECGAB ( legitimate and reasonable expectations ) Article 11 ECGAB ( The official shall act impartially, fairly and reasonably ) B. The Charter as primary Union law 8

9 Conceptual issues and practice Infringement cases (Article 258 TFEU) Communications 2002 and 2012 Transparency: Access to documents Regulation 1049/2001 Staff cases Recruitment (EPSO) Awards of tenders or contracts Institutional and policy matters Provisions on democratic principles (Articles 9-11 of the TEU, specifically, the ECI) Ethics (Conflicts of Interest, Revolving Doors) Improving the culture of service (Public Service Principles for EU officials) 9

10 Conceptual issues and practice: A comparison with the Court of Justice Ombudsman Actio popularis Proactive role Scope of inquiry: broad Remedies: no binding interpretation, no binding remedies Court of Justice Locus standi Reactive role Scope of review: narrow Remedies: binding interpretation, annulment of acts

11 Procedure The Registry Outside the Mandate Advice/Transfer (Europe Direct, SOLVIT, European Commission, National/Regional Ombudsmen, Consumer bodies) Complaints and Inquiries Units Admissibility Grounds Inquiry (Inspection of documents/hearing of witnesses) Simplified procedures No maladministration Friendly solution proposal Draft recommendations Critical remark/further Remark Special report 11

12 Year Number of complaints Statistics Opened inquiries Closed inquiries

13 Statistics Complaints against European Commission 245 European Personnel Selection Office 78 European Parliament 24 European External Action Service 14 European Investment Bank 7 Other (EU agencies) 97(58) 13

14 Statistics Results 2012 Settled by the institution or friendly solution accepted 80 No further inquiries justified 197 No maladministration 76 Maladministration found 56 Other 15 14

15 Conclusions The Challenge Ahead The, the right to good administration and the European Union in crisis 15